The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 26, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on October 27, 2005.

Issue

Whether or not responsibility can be accepted for the worker's ongoing right foot complaints in relation to the February 27, 1995 compensable accident; and

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of The Workers Compensation Act.

Decision

That no responsibility can be accepted for the worker's ongoing right foot complaints in relation to the February 27, 1995 compensable accident; and

That a Medical Review Panel (MRP) should not be convened pursuant to subsection 67(4) of The Workers Compensation Act.

Decision: Unanimous

Background

On May 4, 1997, the worker filed a claim with the Workers Compensation Board (WCB) for right foot difficulties that occurred on November 24, 1995 when she felt a sudden sharp pain down the middle of the bottom of her right foot when walking on a snow-covered sidewalk.

On November 14, 1997, the WCB denied the claim as it was unable to confirm that the worker suffered a personal injury due to an accident arising out of and in the course of her employment. The WCB indicated in the decision that the worker's physician did not document any history of a work related injury and that the worker's symptoms resolved for some time but were re-aggravated by recreational dancing. The decision also pointed out that the employer became aware of the injury in March 1997 and that medical information did not establish a firm diagnosis.

On May 27, 2003, the worker filed a claim with the WCB for right lower leg and right foot (dorsal and lateral aspect) injuries that occurred in the workplace on February 27, 1995. The worker indicated that she was adjusting the height of a bookshelf in her office when it became loose and she was struck on her right side. The worker did not seek immediate medical attention as she only experienced bruising and limping for one week.

The employer provided the WCB with a Notice of Accident report signed by the worker dated March 1, 1995. It stated that an injury occurred on February 27, 1995 when a metal bookshelf went off balance and fell to the floor. The injury was reported as "soft tissue injury to R lower leg, and R foot (dorsal and lateral aspect)".

On June 17, 2003, the worker told a WCB adjudicator that she did not seek medical attention after the injury as it was only a bruise and she worked through it, not knowing what it would lead to. She stated that the first medical treatment she received for her foot was on January 26, 1996 and was actually after the injury to her foot that occurred while she was walking back from an appointment at the WCB offices on Sherbrook (1995 prior WCB claim). She stated that she was told by the doctor that her problem was being caused by nerve damage.

In a report dated October 4, 1996, an orthopaedic specialist indicated that the worker had problems with her right foot since last December when she twisted it on some ice and snow. The specialist indicated that a bone scan showed some increased uptake around the second metatarsal phalangeal joint. The specialist concluded that the worker could have a Morton's neuroma, either early metatarsal phalangeal osteoarthritis or a possible very mild avascular necrosis "(AVN)".

On May 27, 1997, a three-phase bone scan of the feet was carried out and compared with the May 1996 previous study. The results were read as follows: "No abnormalities are seen involving the right foot. The left mid-foot abnormalities are non-specific and clinical and/or radiographic correlation is suggested."

In a report dated January 2, 2002, the treating physician diagnosed the worker with plantar fasciitis. The worker's description of accident was "Long drive aggravated plantar pain." "Low back pain" was noted as the pre-existing condition that may affect recovery.

A bone scan dated January 28, 2002 revealed the following findings: "The increased activity within both feet is non-specific in nature. The more focal activity within the region of the 5^th metatarsal base may possibly be related to a healing fracture. Repeat radiographs of the right foot may be helpful for confirmation."

In an April 13, 2002 report, the treating physician indicated that the worker was seen at his clinic on several occasions regarding her right foot. He stated that the foot was exacerbated by a long drive on November 16, 2001. The working diagnosis was a tarsal metatarsal arthropathy at the fourth tarsal metatarsal joint or potential stress fracture of the fifth metatarsal.

In a July 18, 2002 report, the treating physician indicated that recent CT scan findings did not identify any significant abnormalities at the base of the metatarsals or the tarsal metatarsal articulations. "This likely indicates that the abnormal bone scan was a representation of inflammatory changes at the tarsal metatarsal junction without evidence of structural changes." The physician went on to state the following: "[the worker] has some arthropathy of the fourth and fifth tarsal metatarsal regions of her right foot. Alternatively she may have had a healing stress fracture. It is my opinion, given her history, this would bear a probable cause/effect relationship with exposure in her workplace, likely related to long driving episodes of pressing the accelerator, the brake, and getting in and out of cars. Her relatively flat feet and hypermobile feet may have been a contributing factor."

On July 24, 2002, an orthopaedic specialist indicated that he was not sure what the diagnosis was but indicated that the worker should avoid prolonged standing and excess walking.

A CT scan report of the right foot dated June 5, 2002 revealed the following findings: "The forefoot including the tarsal metatarsal articulations appear well preserved. An acute or healing fracture is not evident in the vicinity. There is no significant tarsal metatarsal osteoarthritis."

On July 23, 2003, a WCB adjudicator referred the case to the WCB's healthcare branch so that a medical advisor could review the file and provide an opinion on several queries. On June 28, 2003, the medical advisor indicated that he was uncertain as to what the current diagnosis was in relation to the worker's foot condition as was the treating orthopaedic specialist (report of July 24, 2002). After considering the fact that the worker did not seek medical attention following the injury of February 27, 1995 and in view of the bone scan findings of October 4, 1996, the worker's condition was not related to the February 1995 accident.

In a decision dated July 28, 2003, the worker was informed that the WCB was accepting responsibility for the injury that occurred to her right leg and foot on February 27, 1995 but it was not accepting responsibility for any medical expenses or time loss after the date of injury. The adjudicator indicated that a relationship could not be identified between the injury to the right leg and foot that occurred on February 27, 1995 and her current right foot difficulties based on the opinion expressed by the WCB medical advisor.

On February 19, 2004, a worker advisor, acting on the worker's behalf, provided the WCB with a report from the treating physician. The worker advisor noted that the treating physician indicated that the worker was 'suffering from right fourth and fifth tarsal metatarsal arthropathy in the lateral mid foot'. The worker advisor further indicated, "Dr. [treating physician] indicates that the subsequent difficulties our client had with her foot were exacerbations or perturbations of the 1995 bookshelf injury. We believe [treating physician] has identified the required relationship between the 1995 injury and her ongoing foot difficulties."

On March 24, 2004, a WCB adjudicator informed the worker advisor that no change would be made to the decision dated July 28, 2003 based on a review of the submitted information. On August 10, 2004, the worker advisor appealed this decision to Review Office.

In a decision dated August 27, 2004, Review Office referred to the opinion expressed by a WCB orthopaedic consultant dated August 24, 2004. Review Office stated that the orthopaedic consultant "…felt that it would be speculative to attribute the worker's ongoing problems to the incident of February 27, 1995. He felt that the February 27, 1995 incident would not lead to the subsequent symptoms and signs occurring five years later in the right foot. It was his belief that there was no confirmed definitive diagnosis and that, in fact, multiple diagnoses have been offered over the years. He noted that the initial focus was on the second metatarsal phalangeal joint in 1996, with possible diagnoses of AVN and Morton's neuroma, for which injections were provided. Subsequent medical investigations were focused over the tarsometatarsal area, and queried a diagnosis of osteoarthritis." Based on the available evidence and considering that the worker failed to seek any medical treatment for almost one year after the work accident, Review Office was unable to attribute the worker's ongoing right foot complaints to the incident of February 27, 1995.

In a submission dated April 14, 2005, the worker advisor requested the convening of a Medical Review Panel (MRP) under subsection 67(4) of The Workers Compensation Act (the Act). The worker advisor contended that a clear difference of medical opinion existed between the WCB's orthopaedic consultant and the worker's treating physician regarding a cause and effect relationship between the February 27, 1995 original injury and the worker's current right foot difficulties.

On April 20, 2005, the worker advisor was informed that an MRP would not be convened as it was felt that the opinion expressed by the worker's treating physician on January 25, 2004 was not based on an assessment of all of the facts that were available and did not satisfy the requirement of subsection 67(1) of the Act. On April 20, 2005, the worker advisor appealed the decision to Review Office.

On July 13, 2005, Review Office agreed that an MRP would not be convened. In reaching its decision, Review Office considered several portions of the Act, namely section 37, subsections 67(4), 67(1), 37(4) and 60(4) along with the comments/opinions provided by the worker's treating physician (sports medicine specialist). Review Office concluded that the specialist was not provided with any or all of the medical information pertaining to the treatment of the worker's foot prior to when he first saw her. Review Office felt that the worker's statement to the specialist that she had foot problems on and off following her February 1995 accident was not supported by other evidence. On July 20, 2005, the worker advisor appealed the decisions reached by Review Office and an oral hearing was arranged.

Reasons

The Panel was asked to address two issues. The first issue was whether responsibility can be accepted for the worker's ongoing right foot complaints in relation to the February 27, 1995 compensable injury. For the appeal of this issue to be successful, the Panel must find a relationship between the worker's ongoing right foot problems and her February 1995 injury. The Panel was not able to make this finding.

The second issue before the Panel was whether an MRP should be convened pursuant to subsection 67(4) of the Act. For the appeal to be successful, the Panel must find there is a difference of opinion between a WCB medical officer and the worker's physician as provided by subsection 67(4). The Panel has concluded that there is not a difference of opinion and that an MRP should not be convened under this provision.

Attendance at the Hearing

The worker attended the hearing with a worker advisor who made a presentation on her behalf. The employer was represented by an advocate, its human resource consultant and its former branch director. The advocate made a submission on the employer's behalf.

The worker called two witnesses in support of her position.

Evidence at Hearing

The worker described the incident of February 27, 1995 when a bookshelf fell on her right foot. She confirmed that the shelf hit her foot at about the fourth toe and middle foot area. She indicated that her whole foot was bruised and swollen for about a week. In response to questions, she indicated that the 1995 accident was "…most related to the fourth, fifth metatarsal area scenario and the swelling of the foot." She advised that her foot problem has never gone away.

When asked by her representative why she did not seek medical treatment until almost one-year post injury she responded in part that she had been trained in sports medicine and knew what to do. She also stated that she did not like taxing the medical system.

The worker also described two other incidents, one which occurred in November 1995 and the other in 1997.

The worker called as a witness an engineer in training who is working with her in her business. The witness provided an estimate of the amount of energy which would be dissipated when a shelf of certain dimensions fell and hit the ground. He also provided a calculation of the length of time such a shelf would take to fall from a height of four feet off the ground. He advised that he had not seen the bookshelf and that the dimensions and approximate weight for the shelf had been provided by the worker. He also acknowledged that he had no direct knowledge of the incident. With respect to the impact on the worker's foot, he acknowledged that he had not considered whether the shelf had other points of impact as it fell. He indicated that the force would be dissipated amongst all points of impact.

The worker also called her treating chiropractor as a witness. He provided his evidence on her foot injury in conjunction with a hearing of a different appeal involving the worker and employer. It was agreed that he would testify about the foot injury at that hearing and that the evidence would be available for this appeal.

The chiropractor advised that he first saw the worker in June 2001 regarding a plantar fasciitis condition. When asked whether he saw a relationship with the incident with the shelf he responded:

"As I didn't see [the worker] in 1995 and did not see her until 2001 it would be just an opinion and I would have to go on what other people's examination findings were at that time frame, so I'm not able to draw that conclusion."

He commented further that "I've seen plantar fasciatus (sic) last upwards of 18 months. I can't say I've ever seen it last from 1995 or a six year time frame."

The chiropractor advised he was also treating the worker for a clinical stress fracture that developed in 2001. He answered questions regarding possible injury from dance activities. He also commented on the impact of walking on uneven surfaces with a loaded backpack.

Analysis

The worker's representative outlined the worker's position that the evidence provided at the hearing and the opinion of her treating physician support a cause/effect relationship between the worker's ongoing right foot difficulties and the February 27, 1995 incident. The representative also suggested it is possible the shelf incident put things into motion where the worker has developed the plantar fasciitis and then the awkward gait from the plantar fasciitis and the nature of her work predisposed her to the stress fractures and her current foot condition.

The representative stated that convening an MRP would assist to sort out some of the medical issues.

The employer's representative noted that the worker did not seek medical treatment or have difficulties as a result of the February 1995 injury. She agreed with the opinion of a WCB healthcare consultant. She noted that the worker's chiropractor did not provide an opinion on the relationship.

With respect to convening an MRP, the employer's representative stated that the treating physician's opinion which forms the basis of the worker's request for an MRP does not meet the standard required to convene an MRP, in that he did not provide an opinion based on an assessment of the facts.

Issue 1

After considering all the evidence, including the evidence presented at the hearing, the Panel finds, on a balance of probabilities, that there is no relationship between the worker's February 1995 compensable accident and her ongoing right foot complaints.

The Panel notes and attaches particular significance to the fact that the worker did not seek medical attention at the time of the accident. She did not seek medical attention until almost one year after the accident and at that time, the medical attention was in relation to an injury that occurred while she was walking on a snow-covered walkway. The worker's description of her symptoms in February 1995, being bruising and swelling for a week, also supports this conclusion.

The Panel notes the evidence of the worker's treating chiropractor that he could not draw a connection between the February 1995 injury and the worker's plantar fasciitis for which he first saw the worker in 2001. The chiropractor also commented that he had not seen a case where plantar fasciitis lasted for 6 years.

The Panel also notes and relies on the opinion of the WCB orthopaedic consultant dated August 24, 2004. The orthopaedic consultant commented that "The one incident occurring Feb 27/95 would not lead to the subsequent symptoms & signs occurring 5 years later in the rt. (right) foot."

The Panel therefore finds, on a balance of probabilities, that the ongoing right foot complaints are not related to the February 27, 1995 compensable accident.

Issue 2

The worker has requested that an MRP be convened. The statutory provisions applicable to this request are subsections 67(1) and (4) of the Act. Subsection 67(1) defines opinion as a full statement of facts and reasons supporting a medical conclusion.
Subsection 67(4) provides:

67(4) - Reference to panel on request

Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.

The worker relies upon the opinion of the treating physician setout in a medical report dated January 25, 2004. Having considered this report, the Panel finds that the report does not meet the definition of an opinion required by the Act as the opinion is based on facts that are not supported by the evidence. The opinion cannot be said to be based on a full statement of the facts because the physician relied upon the worker's "testimony of ongoing pain and swelling in the region of the fourth tarsal metatarsal joint " The Panel notes however the worker's evidence at the hearing and in the file that the swelling lasted for one week after the accident. The Panel also notes the worker did not identify and advise the WCB of the February 1995 accident until 2003. The Panel finds the evidence does not support the statement that the pain and swelling due to the February 1995 accident were ongoing, and accordingly the physician's statement does not meet the criteria of subsection 67(4).

The Panel therefore finds that an MRP should not be convened under subsection 67(4) of the Act.

The appeal is declined on both issues.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of December, 2005